Court File and Parties

Court of Appeal for Ontario Date: 2022-02-17 Docket: M53203 (C68663)

Before: Paciocco J.A. (Motions Judge)

Between: Her Majesty the Queen, Respondent And: Joshua Isaac, Applicant/Appellant

Counsel: Margaret Bojanowska, for the applicant/appellant Jennifer Conroy, for the respondent

Heard: February 16, 2022 by video conference

Reasons for Decision

[1] On February 28, 2017, Mr. Joshua Isaac was arrested and charged with offences arising from an investigation into narcotics trafficking. He was released pending trial and complied with the terms of his release. On January 20, 2020, Mr. Isaac was convicted of two counts of possession of Schedule I narcotics for the purpose of trafficking, and one count of possession of the proceeds of crime, arising from the February 28, 2017 charges. The narcotics consisted of cocaine and a heroin/fentanyl mix. On October 2, 2020, Mr. Isaac was sentenced to 6 years imprisonment less three months pre-sentence custody for those offences, which for ease of reference I will call “the drug trafficking charges”. The Crown consented to Mr. Isaac’s bail release pending his appeal of those convictions and he was released that day.

[2] On June 24, 2021, the police searched an apartment, locating two firearms. On October 2, 2021, having been instructed by police to do so, Mr. Isaac surrendered into custody and was charged with three firearms offences relating to one of those firearms. He was also charged with possession of property obtained by an indictable offence over $5,000 and failing to comply with his bail release order described in paragraph 1. For ease of reference, I will describe these charges against Mr. Isaac as “the firearms charges”.

[3] Mr. Isaac has now secured bail release in connection with the firearms charges. Due to the firearms charges, however, his bail release pending appeal on the drug trafficking charges was not renewed after it expired. He now applies for bail release pending appeal on the drug trafficking charges. He bears the onus on this application.

[4] The Crown strongly contests Mr. Isaac’s release. The Crown does not rely directly on the primary or secondary ground, but urges that lingering concerns relating to whether Mr. Isaac would attend court as required, and whether he would commit further offences if released, are relevant to the tertiary grounds which is the focus of the Crown’s concern. The Crown does not suggest that the public safety leg of the tertiary ground requires his detention on its own, but argues that, in all the circumstances, Mr. Isaac’s detention is necessary to maintain confidence in the administration of justice. It submits that the grounds of appeal Mr. Isaac offers are not strong enough for the reviewability interest to overcome the enforcement interest.

[5] To assist in their submissions, both Mr. Isaac and the Crown have made liberal mention of a decision I rendered denying bail pending appeal to Mr. Jamal Daye. Mr. Daye was one of two men who was also convicted alongside Mr. Isaac of drug trafficking charges arising from the investigation that led to Mr. Isaac’s drug trafficking convictions, which are the subject of the instant appeal: R. v. Daye, 2021 ONCA 671. There are parallels between the two bail pending appeal applications because Mr. Daye was also arrested and charged with firearms offences in connection with the June 24, 2021 search that led to the firearms charges against Mr. Isaac. Mr. Daye’s bail pending appeal, which had also been initially granted on consent, was revoked as the result of Mr. Daye’s firearms charges. When he applied again to be released pending appeal, I denied his application. The Crown argues that the decision in Daye resolves most of the issues raised by Mr. Isaac in his application to be released pending appeal and therefore points the way. Mr. Isaac submits that his case is materially different than Mr. Daye’s case because his appeal relating to the drug trafficking charges is stronger than Mr. Daye’s is, and the case against him on the firearms charges is weak, whereas the case against Mr. Daye on the firearms charges is overwhelming.

[6] I want to make clear that there is only limited utility that arises from my decision in Daye. I will determine Mr. Isaac’s bail application on its own right in its own circumstances, based on the legal considerations that apply.

[7] With respect to the reviewability interest, Mr. Isaac raises grounds of appeal relating to the drug trafficking charge that clearly surpass the “not frivolous” criterion. His contention that the trial judge erred in failing to conduct a s. 24(2) analysis after finding a s.10(b) breach is certainly a credible ground of appeal, although Mr. Isaac does face the prospect that an appeal panel, even if persuaded that there has been an error, could find that the evidence was properly admitted. Mr. Isaac also presents credible grounds of appeal relating to s. 11(b), which could, if successful, require the drug trafficking charges against him to be stayed. His grounds of appeal relating to sentence clearly surpass the minimal standard of not frivolous. Once again, however, even if errors of law or principle or law are identified, the sentence imposed could still be affirmed. Put simply, Mr. Isaac’s grounds of appeal are clearly not frivolous, but the success of those grounds of appeal is far from certain.

[8] The parties agree that this appeal can be perfected promptly and heard without long delay. This reduces to some degree the risk that Mr. Isaac could languish in custody pending what could be a successful and dispositive appeal, but I must bear in mind that it is a matter of concern whenever any time is spent in custody before potentially successful grounds of appeal can be reviewed.

[9] In terms of the enforceability interest, the drug trafficking charges are serious and generally carry a significant sentence. These factors can require that a premium be placed on the enforceability interest, but not always. A more subtle evaluation is required, lest bail pending appeal always be denied for serious charges. In R. v. Oland, [2017] 1 S.C.R. 250, 2017 SCC 17, at para. 50, Moldaver J. noted that where crimes are serious “the public interest in enforceability will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak”. However, he observed, at para. 66, that “where there are no public safety or flight concerns and the grounds of appeal clearly surpass the “not frivolous” criterion, a court may well conclude that the reviewability interest overshadows the enforceability interest such that detention will not be necessary in the public interest”.

[10] I have already made plain that Mr. Isaac’s grounds of appeal are not weak, but nor are they strong. The factors requiring closer examination relating to the public confidence evaluation are concerned with whether there are lingering flight and public safety concerns, and if so, how intense those concerns are.

[11] The Crown grounds its submissions about a lingering flight concern on Mr. Isaac’s 2016 “fail to attend court” conviction, and the delay that occurred when he was asked to surrender on the firearm charges. A fail to attend court conviction is always concerning, but it is evident that Mr. Isaac’s conviction did not involve flight. He received one day in jail for the offence, consistent with a failure to attend on a set date. The impact of the failure by Mr. Isaac to surrender immediately on the firearms charges is blunted by the Crown’s appropriate concession in accepting Mr. Isaac’s counsel’s assurance that she was negotiating and arranging Mr. Isaac’s terms of surrender during this period, hence the delay in surrendering. Moreover, the fact that Mr. Isaac did surrender materially reduces any concern I have that he might flee pending his appeal. Therefore, flight concerns play only a minimal role in my ultimate determination.

[12] However, there are lingering public safety concerns. There is evidence of Mr. Isaac’s readiness to engage in drug trafficking, based on his prior trafficking conviction in 2016 and the fact that he is no longer presumed innocent of the trafficking charges that are the subject of this appeal. Those public safety concerns are aggravated by the firearms charges Mr. Isaac now faces, which are alleged to have occurred in breach of this court’s prior bail pending appeal order.

[13] I agree with Mr. Isaac that the firearms charges against Mr. Isaac are circumstantial and not as strong as the firearms charges that Mr. Daye faces. But I do not share Mr. Isaac’s contention that the firearms charges are weak. It is not my role to conduct a minitrial on those charges, but I must look realistically and in a broad way at the strength of the charges. In this case, there is real reason to be concerned that the alleged firearms offences may well have occurred. The Crown has evidence that Mr. Isaac was connected to the apartment where the firearm was found and that the firearm was discovered in a satchel that can be circumstantially tied to Mr. Isaac. Although Mr. Isaac is presumed to be innocent of the firearms charges, there is a rational and real basis for concern that he may well have committed a serious firearms offence while on bail pending appeal.

[14] Moreover, although Mr. Isaac’s surety is suitable and prepared to pledge her entire savings to assist Mr. Isaac, I have concerns about the position she will be put in if Mr. Isaac breaches his terms of release. The surety is Mr. Isaac’s girlfriend’s mother. It is proposed that Mr. Isaac live in her residence, where his girlfriend also resides. This is the same residence he was required to live at under the terms of his previous bail pending appeal release order that he is alleged to have breached. Moreover, Mr. Isaac’s girlfriend was a surety for Mr. Isaac on that previous bail pending appeal order, and there is evidence before me that when the police were seeking Mr. Isaac in September 2021 at a time of day when he was required to be at that residence, he was not there. This information not only provides additional evidence that Mr. Isaac breached the terms of his prior release pending appeal, it is also evidence that his girlfriend, despite being a surety, refused to provide the police with contact information. I appreciate that the girlfriend’s mother – the proposed surety – bore no legal responsibility at the time for controlling Mr. Isaac, and I do not wish to be taken as suggesting that she did anything wrong. I do have concerns, however, that given the girlfriend’s demonstrated loyalty to Mr. Isaac and given her presence in the residence where Mr. Isaac will be supervised, the dynamic may not be conducive to effective supervision on the proposed surety’s part.

[15] I have considered the strict bail release terms that have been proposed, including the ankle monitoring plan, with both its strengths and limitations. However, the ultimate focus in this application is on the impact of my decision on public confidence in the administration of justice, in the eyes of a reasonable person who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values. In my view, the spectre of disrepute looms large when an appellant who has already been released on bail pending appeal and who is no longer presumed to be innocent of the charges under appeal, seeks to be re-released after being arrested based on credible evidence that he committed a serious offence despite being on conditions of bail.

[16] In my view, a reasonable person would be seriously troubled by the re‑release of Mr. Isaac, a prior drug trafficking offender, pending appeal from conviction of a serious drug trafficking charge given the following circumstances: the appeal, though credible, is not particularly strong; there is reason to believe that Mr. Isaac violated the curfew condition of his prior terms of release; Mr. Isaac has been rearrested while on bail release on credible firearms charges; and Mr. Isaac’s bail release plan depends on supervision by his girlfriend’s mother in a residence where his girlfriend resides, and his girlfriend has demonstrated greater loyalty to Mr. Isaac than she did to her oath as a surety. In my view, a reasonable person would conclude that re-release pending appeal in such circumstances is ill-advised. Mr. Isaac has not met his onus in the circumstances of showing that his release pending appeal would not diminish public confidence in the administration of justice.

[17] Mr. Isaac’s application for bail pending appeal is denied.

“David M. Paciocco J.A.”